Lochtefeld

Penal Code section 245, subdivision (c) punishes “an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer . . . .” (Italics added.) As has been often noted, a pellet gun is clearly an instrument other than a firearm. (See, e.g., In re Jose A. (1992) 5 Cal.App.4th 697, 700-701 [ 7 Cal.Rptr.2d 44 ].) Courts have found pellet guns to be deadly or dangerous weapons in the context of other penal statutes. May a pellet gun also, as a matter of law, be a deadly weapon within the meaning of section 245? The question does not appear to have been answered. We hold that the pellet gun used here was, as a matter of law, a deadly weapon within the meaning of section 245.

Facts

Daniel Bernard Lochtefeld (Lochtefeld) was a resident of the Pine Hotel on Front Street in downtown San Diego. On September 23, 1997, a fellow resident, Carolyn Scott, saw Lochtefeld standing outside the hotel waving a big handgun in the air. Scott told the hotel manager, Vivian Caparell, that Lochtefeld was walking around with a gun in his hand.

Scott continued to watch Lochtefeld, and saw him at a bus stop…